Justice Committee on June 1st, 2006

[Peter Copeland]

I believe, as I indicated earlier, if the provisions were focused upon fighting organized crime by providing undercover officers with appropriate credibility to successfully infiltrate criminal organizations, it would be a much more focused, narrower, and more palatable regime. Just by focusing in on a specific problem, the justification becomes more obvious.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

If I understand correctly, as far as you're concerned, it wouldn't be a problem provided there is a connection with organized crime.

[Peter Copeland]

I'm saying that in principle there's nothing wrong with focusing in on a specific problem, and doing so makes the legislation much more limited in the harmful effects it could have. It reduces the discretion of police officers in other investigations, investigations in which we as a society may not feel that what would otherwise be criminal conduct would be justified. It reduces recourse to criminal activity in those types of circumstances.

At the same time, even if it's focused just on the infiltration of criminal organizations, there's nothing about a narrow provision of that sort that is irreconcilable with judicial oversight. The concerns with respect to confidentiality of informants and protection of investigations can be readily addressed, as they are in the search warrant context and in the wiretap context.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Therefore, you recommend some kind of judicial oversight with regard to the enforcement of these provisions.

[Peter Copeland]

Judicial oversight, prior judicial authorization, is a constitutional preference, and where exigent circumstances exist such that prior authorization is not feasible, then there should be subsequent judicial oversight via more particular reporting requirements to the court in a timely manner. In that way real scrutiny can be made somewhere down the line of the conduct the police engaged in.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Freeman.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you, Mr. Copeland, for appearing here as a witness.

From the testimony we've heard on some of the restrictions, I know sometimes people say this is a licence to break the law, but as you rightly said, these officers who are acting under this provision are in fact acting within the law that we as parliamentarians set out. We've provided these enabling sections of the Criminal Code to allow them to do their job.

From some of what you've provided on the RCMP study, I take that as a bit of a two-edged sword. On the one hand, most of the items you've listed are, as you describe them, victimless--improper labelling of tobacco and passport offences perhaps. My thought is if you use that, perhaps there's a reason why this section shouldn't exist, and I look at that perhaps as a reason why we should consider maintaining the section, because with respect to those types of crimes that are being targeted, if the offence is truly victimless, then I don't see the problem. On the other hand, what comes to mind when I read the act is this isn't a 007-licence-to-kill type of thing. There are limits dealing with inflicting bodily harm or interfering with the sexual integrity of another person. When we look at some of the investigations and the evidence we've heard when it comes to child pornography, human trafficking, biker gangs, organized crime--those types of offences--it's easy to contemplate situations where someone would be in a situation that they would need the recourse, and perhaps the timely recourse, of this section.

I know you've touched on this. But if there were a narrowing of this provision, what do you envision? As Mr. Thompson said, we do talk of balance at times, and there is the real interest of seeing these investigations in some of these very serious areas carried out. What would you propose?

[Peter Copeland]

With respect to my comment that police officers under these provisions are acting under the law, just to be clear, technically they're acting under a legal provision, but they're acting largely as autonomous actors not subject to meaningful review or to serious accountability, given the way the scheme is structured.

With respect to your comments about the types of recourse that have actually been made to these provisions, if the concern here is to allow law enforcement agencies to engage in victimless criminal conduct--possessing contraband, falsifying documentation, and that sort of thing--then a narrowing of the provisions through subsection 25.1(11) could make that clear and thereby remove the justification for conduct that could involve serious bodily harm. As I said earlier, paragraph 11(a) prohibits “the intentional or criminally negligent causing of death or bodily harm to another person”. It doesn't eliminate death or bodily harm from the justification regime.

Manslaughter, for example, is an offence that does not require the intentional causing of death or the criminally negligent causing of death. If the police are entitled to threaten people, apply force to people, and an unforeseen consequence occurs--they're forcibly confining somebody or they're hitting somebody without intention to cause bodily harm and the person suffers a heart attack--it's classically a manslaughter if the underlying act is actually an assault. And these provisions, because of the very narrow restrictions in paragraph 11(a), would provide justification for such conduct.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that, but are we not operating almost completely in the theoretical? The evidence before us is that the actions the police have taken and that have been disclosed have been, as you described, victimless, and we haven't had a serious challenge, constitutional or otherwise, to these provisions. We have no evidence that there have been those kinds of harms. So I'm wondering, what is the harm that we're trying to prevent? Obviously we want to prevent harms. But what's the harm we're trying to prevent and to whom? For some of these--as I mentioned, human trafficking, biker gangs, organized crime, child pornography--we know the harm from the criminal investigative side that we're trying to prevent on that end. In acting under this provision, where is the evidence that there's some wrong that we as parliamentarians have to correct?

[Peter Copeland]

I would start with the premise, instead, that before creating an exception to the principle that everyone is subject to the rule of law--this is a remarkable exception--Parliament ought to have compelling evidence of a need by law enforcement to resort to such extreme conduct as committing assaults, engaging in threatening conduct, forcibly confining individuals, or engaging in firearms offences that could pose, although not an intention to cause bodily harm, real risk to individuals.

An additional harm is to the very concept of the rule of law, in that the state ought to be setting an example to citizens. When the state engages in unlawful conduct or conduct that we as a society view as morally reprehensible, it undermines in a fundamental way the respect of society for those norms.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. Copeland, thank you.

Mr. Lee--oh, Mr. Lee is not prepared.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Hold on, hold on. It's not that I'm not prepared; I just don't have any questions.

[The Chair, Conservative, Art Hanger]

Sorry, I'll correct that.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good day, Mr. Copeland.

You're suggesting that sections 25.1 to 25.4 are different. Sections 25(1)(a) and 25(1)(c) refer to a private person assisting a police officer, not just to police officers. You consistently bring the conversation around to police officers. Yet, sections 25(1)(a) and 25(1)(c) clearly refer to someone authorized to do something, and I quote:

(a) as a private person; and

(c) in aid of a peace officer [...]

Therefore, sections 25.1 to 25.4 could apply to me, a private person. Sections 25.1 to 25.4 protect the average citizen who has an obligation at all times to prevent the commission of a criminal act. For instance, if someone breaks into my home and I'm forced to get into a fight with that person, I could potentially hit him with a baseball bat. Under the circumstances, I'd like to be protected by the legislation. That's my first point.

Secondly, have you given any thought to following Quebec's lead? In that province, when someone is dissatisfied with the behaviour of a law enforcement officer, that person can file an ethical conduct complaint against him. This goes much further than the provisions of sections 25.1 to 25.4. The problem is addressed by invoking Quebec's code of ethical conduct which has been in place for at least 20 years. There is no need even to invoke the provisions of the Criminal Code. This approach is direct, easy and quick and the rulings are far more interesting than those handed down under the Criminal Code, for some rather unusual reason.

Are you calling for an amendment strictly because of law enforcement officers or because you want to prevent anyone who may have witnessed a criminal act from benefiting from sections 25.1 to 25.4?

[Peter Copeland]

Just to be clear, my understanding of sections 25.1 to 25.4 is that they do not apply to private individuals, except to the extent that under subsection 25.1(8), justification and direction can be given to a private individual—for example, to a police agent—to commit conduct that would otherwise be a criminal offence. In those circumstances, that can only occur if a senior officer authorizes it in writing in advance.

With respect to the broader comments of justification and self-defence, and with respect to citizens acting to prevent the commission of an offence, if sections 25.1 to 25.4 were entirely eliminated from the Criminal Code, the right to self-defence would still exist. The right to use force to eject a trespasser from your property would still exist. The right to use force to prevent a continuation of an offence or breach of the peace would still exist. Those provisions apply in various forms to peace officers and to individuals. So it's really not a question of necessity in self-defence.

These provisions are dealing with a very different problem, which in some circumstances may simply have to do with the unlawful possession of contraband. In the narrow circumstances of organized crime investigations, it may deal with providing a credible cover for someone to infiltrate the organization. But they don't have anything to do with the general self-defence types of provisions of the Criminal Code.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

When law enforcement officials behave toward citizens in a manner that is highly questionable, isn't it simpler to file an ethical code of conduct complaint, as is done in Quebec? This is a much quicker and more straightforward approach, one that produces more concrete results. Have you considered this in the case of provinces which deal with numerous ethical conduct cases associated with sections 25.1 to 25.4?

[Peter Copeland]

I certainly support and think the greater degree of civilian oversight of police forces and the dealing with police overstepping the lines in a discipline context and an ethical review are commendable.

I'm not sure this really answers the issue here under 25.1 to 25.4, because the citizens who are affected—the people who would be complaining to police complaints commissions and the like across the country—are unlikely to know, except in the narrow circumstances in which there has been loss or destruction of property, that it's the police they've been dealing with.

It may be that the person who's the victim of this justified crime is one of the targets of the criminal organization. It may be that it's a completely innocent third party who has no idea that the police are engaging in what would otherwise be unlawful conduct.

Because the provisions don't contemplate judicial oversight and therefore subsequent public scrutiny, because the reporting provisions are so narrow that the public officer doesn't even have to give the justification in the report he provides under 25.2, and because the annual report is so threadbare in terms of the information that one can't evaluate whether these circumstances were justified or not, in my view individuals would be hard-pressed to figure out who and what they should be complaining about.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Copeland.

The time is now up for this witness. We appreciate very much your point of view in this review. It's interesting to hear a criminal lawyer's position. Of course, we have listened to police officers, and we'll be listening to more of both over the next couple of meetings.

I guess in the context in which we talk about this, such as organized crime—and I know that questions have come up about it—these sections really, really assist in those types of investigations more than any other type. Even though you may see what is on your reports there, that's just a little part of a bigger scheme. We've been advised that's the way it works. It doesn't necessarily reflect the whole picture, but it does reflect a portion of the picture, and a very essential part of it.

As has been pointed out to us, police officers have utilized this particular activity in the past by justifying it through common law and precedent. It was acceptable until the most recent court case, and now it's in legislation, which is basically where we're at.

That's what's been before our committee at this point. So we're looking at it not only from the point of view of the Criminal Lawyers' Association or of a criminal lawyer, who may also be somewhat narrow in their examination of what's happening, but as a committee we have also received a much broader scope for this application.

I want to thank you. It's been a very interesting discussion here this afternoon.

[Peter Copeland]

Thank you very much.

[The Chair, Conservative, Art Hanger]

I would ask that the rest of the committee remain. We are going to discuss some business in camera. So I'll just suspend for one minute and we will get into an in camera session.

[Proceedings continue in camera]